Ankit Bhutani v. Union of India and 2 others
[Citation -2020-LL-0206-90]

Citation 2020-LL-0206-90
Appellant Name Ankit Bhutani
Respondent Name Union of India and 2 others
Relevant Act CGST
Date of Order 06/02/2020
Judgment View Judgment
Keyword Tags discretionary jurisdiction • goods and services tax • specific direction • input tax credit • tax evasion

Court No. - 7 Case :- WRIT TAX No. - 132 of 2020 Petitioner :- Ankit Bhutani, Son of Shri Madan Lal Bhutani parter of M/s Ravi Crop Science, Industrial Growth Area, Phase-1, Samba (Jammu & Kashmir), R/o D-14, Jivan Jyoti Apartment, Pretampura, Delhi Respondent :- Union of India through Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi and 2 others Counsel for Petitioner :-Birendra Kumar Srivastava (Senior Advocate) assisted by Abhai Kumar Singh Counsel for Respondent No.1:- Anant Kumar Tiwari Counsel for Respondent Nos. 2 and 3:- Ashok Singh Hon'ble Biswanath Somadder,J. Hon'ble Dr. Yogendra Kumar Srivastava,J. [Per: Hon ble Biswanath Somadder, J.] writ petitioner is individual against whom several summonses / notices have been issued from time to time by Senior Intelligence Officer, office of Directorate General of Goods & Services Tax Intelligence, Ghaziabad Regional Unit, Ghaziabad. summonses have been issued on various dates. As stated in paragraph 3 of writ petition, dates are 26 th September, 2019, 27th September, 2019, 1st October, 2019, 7th October, 2019, and 15th October, 2019. As stated in paragraph 14 of writ petition, one Radhey Enterprises from where writ petitioner s firm used to purchase raw materials was also subjected to similar action / summons. Civil Miscellaneous Writ Petition No.18802 of 2019, had been filed by Radhey Enterprises before Punjab and Haryana (2) High Court and operation of summons dated 26 th June, 2019, had been stayed by that High Court. In paragraph 13 of writ petition, writ petitioner has stated that he has been forced to deposit sum of Rs.2 crores on 31st October, 2019. Using above facts and relying upon judgment and order rendered by Coordinate Bench of this Court on 25 th May, 2018, in Writ Tax No.-805 of 2018 (Shri Viklap Jain vs. Union of India and 4 others), writ petitioner has approached this Court praying, inter alia, for following reliefs:- (i) to issue writ, order or direction in nature of mandamus, commanding respondent No.3 to finalize enquiry proceeding, initiated under Section 70 of Central Goods and Services Tax, 2017 and not to take any coercive action against petitioner before holding him guilty in enquiry proceeding, particularly when he has deposited Rs.2 corore (sic) on 31.10.2019, before even quantifying his tax liability. (ii) to issue writ, order or direction in nature of Mandamus commanding respondent No.3 to treat petitioner s presence or appearance through his lawyer / representatives with all relevant documents as required and to afford reasonable opportunity of hearing before passing any final order / quantifying tax liability. question here is whether discretionary jurisdiction of this Court under Article 226 of Constitution of India can be availed by writ petitioner in facts and circumstances of instant case? (3) bare perusal of one of summonses annexed to writ petition, being summons dated 26th September, 2019, reveals that same is for purpose of enquiry in respect of availment of Input Tax Credit (I.T.C.), without receipt of any goods under section 70 of Central Goods and Services Tax Act, 2017. It is admitted position that, till date, writ petitioner, has not appeared before concerned Senior Intelligence Officer in response to any of summonses issued from time to time. Section 70 of Central Goods & Services Tax Act, 2017 reads as follows:- Power to summon person to give evidence and produce documents. 70. (1) proper officer under this Act shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce document or any other thing in any inquiry in same manner, as provided in case of civil court under provisions of Code of Civil Procedure, 1908 (5 of 1908). (2) Every such inquiry referred to in sub-section (1) shall be deemed to be judicial proceedings within meaning of section 193 and section 228 of Indian Penal Code (45 of 1860). At least five summonses have been issued for purpose of such enquiry. discretionary relief to petitioner can be granted by writ Court in exercise of its extraordinary high prerogative jurisdiction under Article 226 of Constitution of India only if his / her bona fides are not suspect. reliefs which writ petitioner is essentially seeking if granted would tantamount to granting him immunity from arrest even though facts of (4) case clearly reveal that, till date, he has not even appeared once before concerned Senior Intelligence Officer. So far as judgment of Division Bench of this Court is concerned, facts of that case are totally different. Even otherwise, while issuing directions, Court took note of fact that entire writ petition was based upon apprehension only. In facts of that case, writ petitioner had claimed that he was running hotel and Desi wine shop. He was issued summons under section 70 of Central Goods and Services Tax Act, 2017, by Superintendent, office of Chief Commissioner of Central Goods and Services Tax Commissionerate, Meerut, to appear in person before him on 10th May, 2018 at 12:45 hours to give evidence on such matters concerning enquiry as he may be asked and produce documents and record mentioned in schedule for examination. In pursuance to summons, writ petitioner had not attended office of Chief Commissioner. Rather, it was alleged that his wife went to office and requested for granting month's time as petitioner was reported to be out of station. In such circumstances, Division Bench in Writ Tax No.805 of 2018 (Shri Viklap Jain vs. Union of India and 4 others), was pleased to dispose of that matter in following manner:- In view of aforesaid facts and circumstances, though entire petition is based upon apprehension only, we dispose it of expecting authorities to adhere to above settled principles of law in interrogating or putting questions to petitioner pursuant to summons dated 8.5.2018 issued to him. (5) Since petitioner has not appeared before Superintendent, Office of Chief Commissioner, Central Goods and Services Tax Commissionerate, Meerut now he is directed to present himself on 30th May, 2018 or on any other date which may be informed to him by aforesaid Officer on his appearance on 30th May, 2018. petition is disposed of with direction that petitioner will cooperate with enquiry. judgment of Coordinate Bench of this Court, even though taking note of three judgments of Hon ble Supreme Court in our respectful view is not authority for proposition that person against whom several summonses have been issued for purpose of enquiry conducted under section 70 of Central Goods and Services Tax Act, 2017, in respect of availment of Input Tax Credit (I.T.C.), without receipt of any goods, can be shielded from such enquiry by writ Court in manner as prayed for. Rather, in that matter, Coordinate Bench disposed of writ petition with specific direction that writ petitioner will cooperate with enquiry. At this juncture, we wish to quote what Lord Morris said in British Railways Board v. Herrington1, which reads as follows:- There is always peril in treating words of speech or judgment as though they are words in legislative enactment, and it is to be remembered that judicial utterances are made in setting of facts of particular case. 1 1972 AC 877= (1972) 1 All ER 749 (HL) (6) In so far as this matter is concerned, series of summonses / notices which have been issued, clearly reveal that writ petitioner is not interested in cooperating with enquiry. Apart from letter dated 24th January, 2020, written by writ petitioner, addressed to concerned Senior Intelligence Officer, after almost four months from date of issuance of first summons dated 26th September, 2019, there is nothing on record to show as to how writ petitioner has specifically responded to summonses / notices dated 26 th September 2019, 27th September, 2019, 1st October, 2019, 7th October,2019, 15th October, 2019 and 19th November, 2019. We may also take notice of views expressed by Hon ble Supreme Court in Poolpandi vs. Superintendent, Central Excise2. Hon ble Supreme Court in that case was considering situation as to whether petitioners were entitled to presence of their lawyers when they were being questioned during investigation under provisions of Customs Act, 1962 and Foreign Exchange Regulation Act, 1973. There was difference of opinion between High Courts on this issue. Supreme Court in its judgment has made certain observations while considering as to whether Article 21 is violated if person is called away from his own house and questioned in that atmosphere of Customs office without assistance of his lawyers or his friends. In this context, following observations of Supreme Court would be worthwhile to be noticed and quoted:- 2 1992 (60) E.L.T. 24 (S.C.) (7) It is true that large majority of persons connected with illegal trade and evasion of taxes and duties are in position to afford luxuries on lavish scale of which honest ordinary citizen of this country cannot dream of and they are surrounded by persons similarly involved either directly or indirectly in such pursuits ..The purpose of enquiry under Customs Act and other similar statutes (emphasis supplied by this Court) will be completely frustrated if whims of persons in possession of useful information for departments are allowed to prevail. For achieving object of such enquiry if appropriate authorities be of view that such persons should be dissociated from atmosphere and company of persons who provide encouragement to them in adopting non- cooperative attitude to machineries of law, there cannot be any legitimate objection in depriving them of such company. relevant provisions of Constitution in this regard have to be construed in spirit they were made and benefits thereunder should not be "expanded" to favour exploiters engaged in tax evasion at cost of public exchequer. Applying `just, fair and reasonable test' we hold that there in no merit in stand of appellant before us. As observed earlier, facts of instant case do not qualify for use of discretion by writ Court in order to grant writ petitioner such reliefs as prayed for. writ petition is, therefore, liable to be dismissed and stands dismissed accordingly. Just after pronouncement of this judgment, learned advocate representing respondent nos. 2 and 3 appears and submits that his clients, namely, Additional Director General (8) Meerut Zonal Unit, Directorate General of Goods & Services Tax Intelligence, Ghaziabad Regional Unit, Ghaziabad and Senior Intelligence Officer, Directorate General of Goods & Services Tax Intelligence, have not even been served with copy of writ petition. We only wish to observe that writ petitioner ought to have approached writ Court after serving all respondents instead of serving only respondent no.1, being represented by Shri Anant Kumar Tiwari. Order Date :- 6.2.2020 Neeraj (Biswanath Somadder,J.) (Dr. Y. K. Srivastava,J.) Ankit Bhutani v. Union of India and 2 other
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